Search Results

Article by Yash Karunakaran With Bashar al-Assad’s increasing control over the Western half of Syria, and the advance of U.S. backed forces in the East, the Syrian civil war has entered a new phase. To date, these two campaigns have managed to largely remain separate, but as the ISIS threat shrinks, Syrian and U.S. backed forces are converging on the same cities. With every passing day, the apparent legitimacy of a U.S. led intervention in Syria decreases. This piece shall attempt to analyze the possible justification for the U.S. intervention in Syria and assess if those justifications are still valid considering the Assad Regime’s increasing control over the country. While the U.S.’s active military involvement in Syria began with the September 2014 strikes on ISIS forces in Syria, it has been careful to avoid providing any explicit legal justification for the same. This leaves in question the legal backing of the U.S.’s military intervention in Syria. In November 2015, the Security Council adopted resolution 2249, which called upon member states to “take all necessary measures, in compliance with international law, in particular with the United Nations Charter,” against ISIS on Syrian and Iraqi soil. One justification provided for the US intervention is that it has been authorised by the resolution. This justification is however contestable. While the Resolution does use language like that used in Chapter VII Resolutions, it makes no mention of Chapter VII in the document. If a Resolution is not constituted under Chapter VII, the general prohibition on the use of force, as enshrined under Article 2 of the Charter shall still apply. Resolution 2249, thus cannot operate in a manner to authorize military intervention, as it is bound by the restrictions laid down in Article 2. A further issue with relying on Resolution 2249 as an authorization is that even if it were to be accepted as a legal justification, it would only apply while ISIS retains control over substantial portions of Syria. This is because resolution 2249 explicitly calls on states “to eradicate safe havens they (ISIS) have established in Iraq and Syria”. Currently, Assad, backed by Russia and Iran, is on his way to a resounding victory over both ISIS and the U.S. backed rebel forces. It appears that the days of a strong ISIS presence in Syria is almost over. Once Assad does regain control over the remaining ISIS held regions, the United States would lose any justification for further presence in Syria. Thus, the question remains - In the absence of such authorization from the Security Council, does the U.S.- led coalition have a legal basis for military action in Syria? In 2014, Iraq requested the U.S. to lead the fight against ISIS and provided express consent for a U.S. led intervention in Iraq. In a letter addressed to the United Nations, Iraq emphasized that: “with due regard for complete national sovereignty and the Constitution, we have requested the United States of America to lead international efforts to strike ISIS sites and military strongholds, with our express consent.” The U.S. airstrikes thus begun against ISIS in Iraq based on the legal justification of ‘Intervention upon invitation’. There was however no invitation nor express consent from the Syrian government for the U.S. led air strikes. The justification rather, stems from an invocation of Article 51 of the U.N. Charter, by claiming that the U.S. led coalition was exercising collective self-defense against ISIS. This justification is problematic, as the ‘unwilling or unable’ doctrine has not been widely accepted except by the U.S. and its allies, and is quite contentious. The ICJ has consistently held that Article 51 of the UN Charter limits self-defensive acts against non-state actors to situations in which the non-state actor’s armed attacks are in any way imputable to the state whose territorial sovereignty is being violated. This was the Court’s position in Nicaragua, which was thereafter reaffirmed in both the Palestinian Wall Advisory Opinion and DRC v. Congo. To analyze this claim, the first test would be to consider the requirements for invoking self-defense against a non-state actor. First, it would have to be shown that the state in which the armed force is operating (Syria) is unwilling or unable to prevent the actor (ISIS) from attacking other states. Thus, self-defense was permissible as Syria was unable to prevent ISIS from attacking other states (such as the U.S.). This defense was strengthened by the fact that Syria had at that point of time had large portions of territory controlled by ISIS forces. However, this justification stands on shaky footing. It would be a long stretch to hold that the inability of the Syrian regime to counter ISIS on its soil has allowed it to attack the U.S., especially since ISIS had maintained a large presence in Iraq, along with significant insurgent cells operating in Algeria, Pakistan, Tunisia, the Caucasus, the Philippines and Saudi Arabia. Even if we are to accept this justification, it would soon become problematic for the U.S., as with the looming defeat of ISIS in Syria, the U.S. would have to end its intervention. Once Assad has defeated ISIS, the only thing in his way would be the rebel forces, and the U.S. would have no justification for actively backing them. Another justification for the intervention is the claim that the U.S. recognizes the National Coalition of Syrian Revolutionary and Opposition Forces (the rebels) as the sole legitimate representative of the Syrian people, and that it has ‘given consent’ to the U.S. to help in overthrowing the erstwhile Assad regime. This stance is especially problematic, as consent can only be given by the legitimate government of a State. The National Coalition lacks cohesiveness and more importantly, sufficient territorial control, and thus any recognition of them is a mere political act. A majority of the U.N. member states still recognize the Assad regime, and continue to share diplomatic relations with it. Thus, the legal recognition of the regime as the legitimate government of Syria is still intact. Bearing this in mind, any act of forcible intervention in Syria to aid the opposition against the Assad regime would be in direct violation of the principle of non-intervention, as recognized by the ICJ in Nicaragua. Therein, the Court had held that “the principle of non-intervention involves the right of every sovereign state to conduct its affairs without outside intervention”. The final legal justification provided for the U.S. intervention is the prevention of use of chemical weapons. The use of chemical weapons constitutes a violation of customary international law. It should be noted that although Syria is not a party to the 1993 Chemical Weapons Convention, it is bound by the 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. The U.S. reliance on this justification can be seen in the draft submitted to Congress by the Obama Administration regarding authorization for the use of U.S. Armed force in Syria. The preamble of the draft reads: “The objective of the United States’ use of military force in connection with this authorization should be to deter, disrupt, prevent, and degrade the potential for, future uses of chemical weapons or other weapons of mass destruction” It has been further asserted that the use of force in such a case is justified as the prohibition on the use of chemical weapons is a jus cogens norm. The problem with this however is that using force to enforce international obligations would amount to a forcible reprisal, which is also widely accepted as prohibited under international law. In conclusion, when the U.S. led intervention began in 2014, it was justified on flimsy grounds. If these justifications are to be assessed in the present day, there can be no legal basis for continuing the U.S. intervention in Syria. While the Syrian war is still in flux, the United States must seriously consider withdrawing from Syria - even if it would involve making tough choices about a regime that it does not recognize. The challenge now is to recognize the continued violation of international law and remedy it while the opportunity still exists. About the Author: Yash Karunakaran is a student and researcher at the National Academy of Legal Studies and Research, India. He often writes on international law and foreign affairs and is a guest contributor for the Berkeley Journal of Internal Law’s Blog. He can be contacted via email.

Guest Contributor: Meera Manoj On  March 15, 2018, the United States issued an unprecedented and all-encompassing challenge at the World Trade Organisation against almost every export subsidy scheme maintained by India, for violating the 1994 Agreement on Subsidies and Countervailing Measures (ASCM). These schemes include the Merchandise Exports Scheme, Export Oriented Units Scheme and several sector-specific schemes including the Special Economic Zones scheme. If successful the challenge could wipe out $7 billion worth of benefits just annually.  However, its true significance lies in the global scope of its consequences. It would have a domino effect to invalidate or shorten the period of export subsidies for over twenty-two developing countries, and consequently, stymie their economic growth. It would also necessitate a perilous balancing act by the WTO Dispute Settlement Body (DSB) to addresses concerns of developing countries while not overstepping its mandate. The Crux of the Challenge: The basis for the U.S. challenge is a contentious interpretation of the ASCM which has long created a rift between developed and developing countries in the WTO. Under Article 3.1 of the ASCM, the WTO prohibits countries from granting exports that are contingent on export performance or the use of domestic goods over imports. However, when the ASCM was drafted in 1994, it was recognized under Article 27.1 that there must be a degree of flexibility in implementing this prohibition when it comes to developing countries. Accordingly, two categories of countries were identified who could eliminate subsidies over a gradual period: The first category under Annex VII of the ASCM includes least developing countries (LDCs) and developing countries with a GNP per capita below $1000. Annex VII countries, as per Article 27.2(a) did not have an absolute cap on their transition period. Rather, they were to graduate from Annex VII once their GNP per capita crossed $1000 per annum. The second category includes all other developing countries that are given an 8-year transition period during which they could gradually phase out their export subsidies to zero under Article 27. (2)(b). When it comes to the consequences of Annex VII countries crossing the $1000 GNP threshold, WTO Members hold diametrically opposing views. One faction led by India argues that on graduation, Annex VII countries will be entitled to an additional transition period of 8 years as was given to the other developing countries. The opposing faction led by the United States, however, contends that on graduation, Annex VII countries will immediately have to cease providing all export subsidies. A Thorny Issue of Interpretation: The basis for the ambiguity lies in the text of the ASCM. Annex VII (b) states that when the developing countries graduate from it they will be “subject to the provisions which are applicable to other developing Members according to Article 27.2(b).” Article 27.2(b), excludes the export subsidy prohibition from applying to “other developing country Members for a period of 8 years from the date of entry into force of the WTO.” On the face of it, it is unclear whether graduating countries may enjoy an additional 8-year transition period or not. India and other Annex VII countries argue that they indeed have an additional 8-year period to phase out subsidies. They advocate for the phrase “from the date of entry into force of the WTO” (the disputed phrase) to be construed to mean from the date of graduation of individual Annex VII countries. Amongst the developed countries, particularly the U.S., there is strong opposition to the above viewpoint. They believe that the provision must be interpreted literally. The disputed phrase means that Article 27.2(b) refers only to the other non-Annex VII developing countries. It cannot be extended to grant an equivalent transition period to Annex VII countries. They argue that the former part must be ignored, that is, “for a transition period of 8 years.” Possible Arguments that may be Advanced: Although neither party has revealed their argumentation or the written submissions to support their positions, this section suggests certain arguments that they may advance. In Favour of India: India’s plea an additional 8-year period may be justified by advocating for the adoption of a harmonious interpretation. Panels have previously recognized the principle of “effective treaty interpretation” which posits that parts of WTO Agreements must not be rendered obsolete. Here, Annex VII (b) which requires Article 27.2(b) to apply to India and other countries would be rendered ineffective if the 8-year transition period is not granted. India may rely on the fact that in such situations, Panels often refer to the object and context of the treaty. For the ASCM, it is evident that the purpose of creating a category of Annex VII countries was so that they may be accorded a more liberal treatment. Once they reached a $1000 GNP, they would be put at par with other developing countries for who an 8-year transition period had been recognized as a necessity. The date of counting this period is a technicality, and it must not be used to take away the substantive right of a transition period. India may also point out that when it comes to individual products, Article 27.5 states that Annex VII countries must be given an additional 5-year phase-out period for a product that has become export competitive. It would be an incongruous proposition that a single product is given an additional five-year phase-out period, whereas, when the GNP increases (not a measure of export competition and therefore not directly tied to export subsidies), there is absolutely no transition period. Annex VII countries when they reach a $1000 GNP will effectively be subject to the same standard as a developed country, instead of developing countries who had reached a $1000 GNP. In Favour of the U.S.: The U.S. may support its contention that there is no transition period by emphasizing that Annex VII countries have had an uncapped period to phase out subsidies and graduate from a $1000 GNP cap. India itself, graduated only in 2013, nineteen years after the WTO agreement came into force.  This allowed sufficient time to phase out subsidies without granting an additional eight years. Thus, it is not equitable or necessarily in furtherance of the object of the SCM to grant Annex VII countries an additional transition period, allowing more than twenty-seven years to phase out while other developing countries have been granted merely eight years. Moreover, the U.S. may point out that the disputed phrase is not ambiguous enough to warrant being given a wholly different meaning. To do so would risk violating Article 3.2 of the Dispute Settlement Understanding, 1994 that prohibits Panels from diminishing obligations under the covered agreements. It may also use the principle of effective treaty interpretation to argue against rendering the disputed phrase redundant. Further, the U.S. may draw attention to the fact that certain Annex VII countries have previously appeared to implicitly recognize that the interpretation they propose is impossible to derive from the ASCM’s current text. To this effect, they have suggested amending the text before the Negotiating Group on Rules by inserting a footnote to clarify that for Annex VII countries the period would begin from the date of their graduation. India itself had been one of the proponents of this suggested amendment. It would be incongruous to argue that a provision can be read in a certain way when having previously indicated that an amendment would be necessary to accord it such a meaning. Future Implications: The current dispute throws up several complex points of interpretation. With consultations between the US and India failing on April 11th, 2018, the WTO has initiated the process for setting up a Panel. It will be a high-stakes case for all the developing countries involved, as twelve Annex VII countries have graduated according to a 2017 Report of the WTO Secretariat. Moreover, the WTO itself will be put in a delicate situation. It must either take the bold decision to ignore the words “from the date of entry to the WTO” or adopt a rigid textual interpretation that would barrel many developing countries down the road of economic ruin. The challenge will also be compounded due to immense political pressure. The current U.S. administration has in the past accused it of judicial overreach to block the appointment of Appellate Body Members and even affirmed its intent to flout unfavorable WTO ruling in its official Trade Policy 2018. The WTO Panel will, therefore, have to balance the needs of developing countries while not overstepping its mandate under the DSU to provoke the ire of the U.S. Its ruling could very well be a defining moment of global confidence in the WTO system.

By Harris Mateen On May 4, 1979, Margaret Thatcher became the first female Prime Minister of the United Kingdom. Her election triggered a new era in the post-World War II foreign policy of the U.K. An ardent anti-Communist, Thatcher closely aligned with the Cold War policies and strategies of her American peer, President Ronald Reagan. Her reinvigorated British Cold War policy included encouraging the US to position nuclear cruise missiles across Western Europe. Thatcher’s eleven-years as Prime Minister, which started thirty-nine years ago today, allowed the United Kingdom to show a steely resolve towards crises. This resolve led to Thatcher earning the nickname “The Iron Lady.” Some of her contradictory choices included supplying Saddam Hussein’s regime with weaponry in 1981 but suggesting threatening the use of chemical weapons against his regime in 1991, and opposing strong sanctions on South Africa’s apartheid regime yet later assisting with securing Nelson Mandela’s release from prison. After leaving office, Thatcher continued to play a role in foreign policy and international affairs, and often still a controversial one. In 1998, she encouraged the release of Augusto Pinochet—indicted by Spain for spearheading the disappearances of thousands of Chileans for political purposes. She also cheerled the second Bush administration’s invasion of Iraq in 2002.

By Anil Yilmaz The last two years saw the Trump Administration bringing about several impactful reforms in a multitude of socio-economic areas. Majority of these reforms entail huge controversies and the ones focusing on multilateral trade agreements are of no exception. Obscurity surrounding the Transatlantic Trade Partnership and shelving of the Transpacific Partnership is already well-known. Currently the administration is making a blatant move to scrap the investor-state arbitration under NAFTA and obstruct with the WTO dispute resolution mechanism. Not so long ago President Trump defined NAFTA as “the worst trade deal maybe ever signed anywhere.” The US Trade Representative Lighthizer recently joined the conversation and laid out his skepticism of investor-state arbitration under NAFTA Chapter 11. Lighthizer essentially made two claims: Investor-state arbitration clauses work against US sovereignty and they ease the way for US corporations to migrate by eliminating the political risk abroad. However, as is often the case, the facts do not side with the Administration on this one. The US has never lost a case under NAFTA. Therefore, the impact of NAFTA upon US sovereignty is virtually zero. If anything, US companies are awarded handsome compensations by NAFTA tribunals and avoided otherwise harmful restrictions. Moreover, empirical studies fail to unequivocally find a direct correlation between the existence of free trade agreements and corporate decisions for making investments abroad. This means that regardless of the existence of any treaty, US corporations will likely continue operating abroad to maintain or increase their global market share. Scrapping ISDS clauses starting with NAFTA thus will only ensure one thing: exposing US corporations to political risk when operating abroad without a viable international legal remedy. Businesses, politicians, and lawyers familiar with the existing legal framework warn the Trump Administration not to undermine the investor-state arbitration. For instance, renowned US international law practitioner Judge Brower recently condemned what he called “politicization" of investor-state dispute settlement and claimed that a move away from the current regime would be “selling-out” investors. At the Annual Meeting of ASIL, Judge Brower strongly criticized Lighthizer’s school of thought with reference to centuries-old trade practices. In a similar vein, dozens of Republican Congressmen moved by business leaders sent an open letter to Trump Administration to avoid “harming” their industry and maintain existing legal policies in relation to free trade agreements.  On the other side of the aisle, opponents of the current investment regime gain recognition from the nascent populist movements in both Europe and the US.  Yet, such movements are based on real “fake news” Judge Brower claimed. Trump Administration’s skepticism is not confined to investor-state arbitration. Since the summer of 2017, a similar effort is underway in relation to WTO dispute resolution. The US Government has denied appointing new members to the Appellate Body which hinders the once highly acclaimed dispute resolution process.   WTO Director-General Azevedo said that the US actions compromise the “ability of the system to resolve disputes”. The hybrid system that the WTO dispute resolution process offers introduces diplomatic and legal elements, and have long been championed by practitioners as one of the most effective around the world.  Now the US government looks at the prospects of scrapping it down. Trump Administration’s not so secret intention to substantially increase tariffs on Chinese imports explains the motive. Yet the experts warn again for potential legal ramifications. The US has invoked national security grounds to avoid applicable WTO rules. This method might be replicated by other countries like China, which could potentially eradicate the system altogether. Based on the US interpretation, any country, including China, may redefine their national security interest as to include anything. Hence, avoiding the existing multilateral trade regime. With a weakened Appellate Body that is failing to provide legal oversight, we can easily return to days when these institutions did not exist. Trump Administration’s latest efforts significantly undermine the weight of international courts and tribunals and attempt to nationalize the adjudicatory process. Similar to its economic counterpart, judicial protectionism reverses the role of international trade and investment tribunals back to national courts and brings us to pre-cold war circumstances. Yet history is replete with examples of why this does not work. Additionally, there is no clarity on how this will support US interests. Protectionist measures may sound appealing at the outset, but it is their complex ramifications which makes them harmful. In this context, it is important to understand why the targeted judicial institutions were built in the first place. Prior to the existence of the current legal framework for trade and investment, capital-exporting states used to protect their economic interests abroad largely through diplomatic efforts. Due to ever-increasing burden of globalization, such diplomatic efforts may not be viable today. Reversing the processes could significantly undermine the probability of resolving economic disputes. Unresolved economic disputes, in turn, may raise diplomatic tensions and even lead to potential military conflicts. Therefore, it is important for Trump Administration to tread lightly when it comes to overhauling of this system. Without a thorough analysis made or alternatives created, walking away from NAFTA or undermining the WTO dispute resolution system could have significant adverse effects on US interests.

By Anil Yilmaz The last two years saw the Trump Administration bringing about several impactful reforms in a multitude of socio-economic areas. Majority of these reforms entail huge controversies and the ones focusing on multilateral trade agreements are of no exception. Obscurity surrounding the Transatlantic Trade Partnership and shelving of the Transpacific Partnership is already well-known. Currently the administration is making a blatant move to scrap the investor-state arbitration under NAFTA and obstruct with the WTO dispute resolution mechanism. Not so long ago President Trump defined NAFTA as “the worst trade deal maybe ever signed anywhere.” The US Trade Representative Lighthizer recently joined the conversation and laid out his skepticism of investor-state arbitration under NAFTA Chapter 11. Lighthizer essentially made two claims: Investor-state arbitration clauses work against US sovereignty and they ease the way for US corporations to migrate by eliminating the political risk abroad. However, as is often the case, the facts do not side with the Administration on this one. The US has never lost a case under NAFTA. Therefore, the impact of NAFTA upon US sovereignty is virtually zero. If anything, US companies are awarded handsome compensations by NAFTA tribunals and avoided otherwise harmful restrictions. Moreover, empirical studies fail to unequivocally find a direct correlation between the existence of free trade agreements and corporate decisions for making investments abroad. This means that regardless of the existence of any treaty, US corporations will likely continue operating abroad to maintain or increase their global market share. Scrapping ISDS clauses starting with NAFTA thus will only ensure one thing: exposing US corporations to political risk when operating abroad without a viable international legal remedy. Businesses, politicians, and lawyers familiar with the existing legal framework warn the Trump Administration not to undermine the investor-state arbitration. For instance, renowned US international law practitioner Judge Brower recently condemned what he called “politicization" of investor-state dispute settlement and claimed that a move away from the current regime would be “selling-out” investors. At the Annual Meeting of ASIL, Judge Brower strongly criticized Lighthizer’s school of thought with reference to centuries-old trade practices. In a similar vein, dozens of Republican Congressmen moved by business leaders sent an open letter to Trump Administration to avoid “harming” their industry and maintain existing legal policies in relation to free trade agreements.  On the other side of the aisle, opponents of the current investment regime gain recognition from the nascent populist movements in both Europe and the US.  Yet, such movements are based on real “fake news” Judge Brower claimed. Trump Administration’s skepticism is not confined to investor-state arbitration. Since the summer of 2017, a similar effort is underway in relation to WTO dispute resolution. The US Government has denied appointing new members to the Appellate Body which hinders the once highly acclaimed dispute resolution process.   WTO Director-General Azevedo said that the US actions compromise the “ability of the system to resolve disputes”. The hybrid system that the WTO dispute resolution process offers introduces diplomatic and legal elements, and have long been championed by practitioners as one of the most effective around the world.  Now the US government looks at the prospects of scrapping it down. Trump Administration’s not so secret intention to substantially increase tariffs on Chinese imports explains the motive. Yet the experts warn again for potential legal ramifications. The US has invoked national security grounds to avoid applicable WTO rules. This method might be replicated by other countries like China, which could potentially eradicate the system altogether. Based on the US interpretation, any country, including China, may redefine their national security interest as to include anything. Hence, avoiding the existing multilateral trade regime. With a weakened Appellate Body that is failing to provide legal oversight, we can easily return to days when these institutions did not exist. Trump Administration’s latest efforts significantly undermine the weight of international courts and tribunals and attempt to nationalize the adjudicatory process. Similar to its economic counterpart, judicial protectionism reverses the role of international trade and investment tribunals back to national courts and brings us to pre-cold war circumstances. Yet history is replete with examples of why this does not work. Additionally, there is no clarity on how this will support US interests. Protectionist measures may sound appealing at the outset, but it is their complex ramifications which makes them harmful. In this context, it is important to understand why the targeted judicial institutions were built in the first place. Prior to the existence of the current legal framework for trade and investment, capital-exporting states used to protect their economic interests abroad largely through diplomatic efforts. Due to ever-increasing burden of globalization, such diplomatic efforts may not be viable today. Reversing the processes could significantly undermine the probability of resolving economic disputes. Unresolved economic disputes, in turn, may raise diplomatic tensions and even lead to potential military conflicts. Therefore, it is important for Trump Administration to tread lightly when it comes to overhauling of this system. Without a thorough analysis made or alternatives created, walking away from NAFTA or undermining the WTO dispute resolution system could have significant adverse effects on US interests.

By Leyla Karimzadeh On April 25, 1945, delegates from fifty nations met in San Francisco, California. The United Nations Conference on International Organization (UNCIO) took place from April 25th to June 26th, when nations signed the United Nations Charter, the United Nations' foundational treaty. The name United Nations was first used by President Roosevelt in 1941 to describe the countries fighting against the Axis during World War II. The United Nations was created to maintain international peace and cooperation among nations in the aftermath of World War II. However, the United Nations was not the first international organization created to accomplish these goals. Under a very similar set of circumstances, its predecessor the League of Nations was created after World War I. In 1920 forty-eight countries joined the League. Unfortunately, the League of Nations ultimately failed and disappeared when World War II broke out. The United Nations has had a more successful story. In 2015 the United Nations celebrated its 70th anniversary. Its mission is to maintain international peace and security, protect human rights, deliver humanitarian aid, promote sustainable development, and uphold international law. The development of international law has been a major part of the United Nations’ work. Since its creation in 1945, the United Nations has had to evolve and adapt to many challenges. The second half of the twentieth century has seen the beginning and the end of the Cold war, the decolonization process, humanitarian and financial crises, and numerous wars. The international organization will have to face many challenges in this century too, starting with climate change and displaced populations, as well as internal crises.

By Dru Spiller In a year that has been fraught with tensions about immigration bans based on religion and national origin, a surprising human rights victory has emerged from the Eastern District of Pennsylvania. On April 19, 2018, the war criminal Mohammed Jabbateh “Jungle Jabbah” was sentenced to 30 years imprisonment after being found guilty of two counts of fraud and two counts of perjury in connection to his false reporting on immigration documents. In the community of East Landsdowne, Pennsylvania Mohammed Jabbeteh seemed like a family man. He arrived in the United States in the late 1990’s under an application for US asylum and obtained permanent residence. Between the end of the First Liberian Civil War in 1998 and before his arrest in 2016, for all intents and purposes, Jabbateh was living his American immigrant dream. He had married, started a family and ran a business named Jabateh Brothers Loading Services that ships containers to Liberia. However, before his arrival to the US, Jabbateh had taken on the nom de guerre “Jungle Jabbah” and had terrorized Liberians as the commander of the rebel group the United Liberation Movement for Democracy in Liberia (ULIMO). Jabbateh stood accused of personally ordering troops to commit such acts as the murder of civilian noncombatants, the sexual enslavement and public raping of women, torturing civilians, and conscripting child soldiers. His trial began and ended in October of 2017 and included the testimony of 20 witnesses who were flown from Liberia. Over the course of the 3-week trial, witnesses testified to the horrific atrocities they had been subjected to by Jungle Jabbah’s unit. One witness testified about her repeated rapes at the hands of an officer at 13-years-old, another testified that she was forced to cook the heart of two men, including her husband, at the request of Jungle Jabbah for him and his crew to eat, and another testified that in an act against a rival commander, he beat and then shot his pistol into the vagina of her 4-months pregnant sister leaving her to die in the street. Despite these atrocious acts, the indictment convened not on his alleged war crimes and crimes against humanity but on his false reporting on immigration documents. Jabbateh had previously indicated on his records that he was a member of the ULIMO seeking asylum but reported false statements about his Liberian wartime activities and denied that he had secured asylum fraudulently. The Department of Justice has started to use unorthodox ways to prosecute war criminals in US jurisdiction, and immigration-related charges are becoming the go-to prosecution strategy. This strategy also presents a unique question of sentencing and how much each court is willing to consider the defendant’s history of criminal activity in relation to his immigration charge. The court must then determine where to place the defendant within the sentencing range suggested by the U.S. Sentencing Guidelines. Even still, the case represents the first time that victims of the First Liberian Civil War were able to testify in front of a criminal court. Jabbateh is also the first to be convicted of crimes from the First Liberian Civil War and his sentence of 30 years is one of the longest sentences for immigration fraud in US history. Alain Werner, director of Civitas Maximas has said about the trial, ““For years we have been working tirelessly to pursue justice for victims of the most atrocious crimes. Astonishingly, Liberian victims have been denied justice in their own country so they had to find access to justice elsewhere. The Jungle Jabbah case is an expression of these efforts.” His trial will hopefully be the first of many and begin a new era where alleged war criminals can no longer seek to hide in the US with impunity. For more information and to learn how to further support this effort please visit The Liberian Quest for Justice. Civitas Maxima and the GJRP will be leading outreach campaigns and will be monitoring the upcoming trials of alleged Liberian war criminals expected to happen in 2018 and 2019. They have launched a crowdfunding campaign for the continued support of Liberian victims in their fight for justice. About the GJRP The Global Justice and Research Project (GJRP) is a Liberia-based non-profit, non-governmental organization that documents war crimes and, where possible, seeks justice for victims of these crimes, with the full consent of the victims. For more information and media inquiries go to www.globaljustice-research.org or contact the GJRP director by phone: 00231778160062. About Civitas Maxima Civitas Maxima (CM), based in Geneva, ensures the coordination of a network of international lawyers and investigators who work for the interests of those who have been victims of international crimes, particularly war crimes and crimes against humanity. For more information and media inquiries, go to www.civitas-maxima.org or contact via email: info@civitas-maxima.org or by phone: 0041223461243.

By: Luna Martinez Gomez On April 14, 1912, the RMS Titanic collided with an iceberg. Most of us are familiar with the tragic story of the Titanic shipwreck, dramatized by Leo and Kate into a story of unrealized love and sunken diamonds. However, few people are aware of the challenges that international lawyers faced 104 years ago over litigation concerning the ship's sinking. Who could recover for the loss of personal property, cargo, human life, and the ship itself? These questions were riddled with difficulties. The vessel was owned by a British company but sank in international waters on its way to New York. Further, those aboard her maiden journey hailed from all over the world. Could the U.S. apply its liability laws? Could the case be tried before United States courts? The iceberg that triggered Titanic’s descent into the annals of history contributed to complicating the case. A robust body of jurisprudence existed to deal with conflicting international laws in response to a collision at high seas between two ships. Yet, it was unclear whether the law of the [ship's] flag should also apply to the loss of a vessel by striking a foreign object. The U.S. Supreme Court ruled that the law of the flag determined whether a cause of action existed against a shipowner, but the law of the country in which the action was brought (lex fori) determined if and to what extent the shipowner may limit liability. This resulted in a bewildering puzzle of hypotheticals. What if an action for wrongful death was limited to one amount by the law of the forum, and to a different amount by the lex loci? What if the vessel belonged to a state that allowed a right of action for a cause not recognized by U.S. maritime laws? The above is just one example of the conflicts of law that countries face when responding to maritime misfortunes. These issues are further highlighted by the universal interest in protecting human life in the high seas, ensuring the integrity of mercantile relations, and allowing countries to assert their autonomy and sovereignty over their property. Titanic’s sinking a century ago is but one cautionary tale of the way in which fragmented legislation often leads to frictions in the field of international law.

By Stephen Dockery Widely divergent views of data privacy continue to be a thorn in the side of American-European relations. And until that gap narrows, there is unlikely to be a calm in the legal challenges that are roiling the international business community. Most lately in the case United States v. Microsoft Corp, seen before the U.S. Supreme Court at the end of February. The U.S. tech company has resisted turning over access to customer data stored in foreign jurisdictions pursuant to the Stored Communications Act (SCA), on the grounds that the data handover would put the business afoul of Irish government data privacy regulations. Following a favorable ruling in the Second Circuit, the case was argued before the Supreme Court on February 27. The argument focused on the nature of the statute, the types of foreign contacts involved and whether the government was trying to compel disclosure of information by warrant or subpoena. Issues raised by the justices included how foreign data storage could be used to evade U.S. enforcers and whether the disclosures could be made voluntarily. Justice Breyer focused on the reasonable interpretation of the SCA and how sovereignty and comity issues with foreign powers could be handled under existing judicial doctrines. His questions point toward a long-running crisis of confidence between Europe and the U.S. which underlie the recent spike of data privacy litigation in American and European Courts. The spark that ignited the data conflict goes back to 2013 when American data surveillance programs such as PRISM, came to light after leaks from former NSA contractor Edward Snowden. The reports led the Court of Justice of the European Union, the highest court in the EU, to toss out the data transfer framework that had been used to govern information handling by companies doing business between the two continents. Companies had been able to self-certify data privacy standards under the agreement known as Safe Harbor. After extensive negotiations involving the U.S. Department of Commerce and their European counterparts, the parties put together a new privacy agreement called Privacy Shield, which was announced in 2016. That agreement has been continually challenged in Europe on claims that the new agreement still does not meet European privacy standards because of the existence of the American spying programs. A recent challenge to the regime was tossed out on standing grounds. A challenge to standard contractual clauses, that have been used by companies to try to meet European data requirements was recently referred to the European High court. The data storage and data transfer space remain very much in flux, and at the heart of all this litigation is a fundamental difference of opinion on the protections afforded to an individual’s privacy. Europe has a powerful pro-privacy tradition that has been memorialized in such documents as the Charter of Fundamental Rights of the European Union.  American privacy protections have been arguably less formalized and there have been contrary actions such as the Foreign Intelligence Surveillance Act which directly empower data collection. American intelligence agencies can still scoop up massive amounts of data at home and abroad, which is something that gives country data protection authorities and privacy advocates pause. European concerns range from acceptable remedies for privacy violations to assurances of limits to American foreign data dragnets, issues that trade negotiators cannot address in full. There is a dissonance of privacy rights and procedure between Europe and America that remains unaddressed since the 2013 revelations came to light. So long as remedies and assurances remain elusive, legal challenges and uncertainty will likely continue to disturb the transcontinental marketplace. The CLOUD Act, which parties alluded to during the Microsoft case oral argument, is a pending bill that could meaningfully alter some of the issues between the US and EU on data privacy in the enforcement sphere. It would allow American prosecutors easier access to information held abroad and establish a procedure for foreign enforcers to access data held by American firms. The bill has been hailed by some legal experts as fixing the enforcement problem and panned by the Electronic Frontier Foundation as “a dangerous expansion of police snooping.” Even if the CLOUD Act passes a larger reconciliation, to put privacy authorities at ease and provide definitive remedies for European individuals harmed by privacy violations, may be needed to calm the data privacy waters.

On March 14 1975, representatives of some eighty-one States along with ten intergovernmental organizations and agencies gathered in Vienna and opened the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character . Their intention was to create a uniform set of standards governing the diplomatic privileges and immunities of representatives of international organizations to states and state representatives to international organizations. The Convention to which 41 states became a party, however, failed to enter into force. Hence leaving the matter to be resolved through a myriad of complex international and domestic rules. While with its own applicable conventions, the UN remains an exception to this ambiguity, due to this failed attempt many international organizations still perform in a complex legal framework primarily bound to their host states despite fulfilling neutral diplomatic functions up until today.

By Dru Spiller Voting is a central part of civic duty and a basic element of democracy. Despite its importance, this right is often denied to individuals who have been convicted of a crime. In a 2004 case, Hirst v. United Kingdom, the European Court of Human Rights ruled that a blanket ban on prisoner voting was unlawful and a breach of prisoners’ human rights. The court held that “‘[P]risoners in general continue to enjoy all fundamental rights and freedoms guaranteed under the Convention save for the right to liberty […]’, and that ‘[a]ny restrictions on these rights must be justified.” The court introduced a proportionality concept to the case. The European Court of Justice elaborated on this concept in the 2015 case of Thierry Delvigne v. Commune de Lesparre Medoc and Prefet de la Gironde, declaring that EU member states may use a proportionality test to “take into account the nature and gravity of the criminal offense committed and the duration of the penalty.” In 2016 Penal Reform International published a brief from eight international law firms reviewing the global extent of disenfranchisement of detained persons. They found that in 45% of the jurisdictions studied imprisonment is automatically followed by disenfranchisement. They also found that in 55% of the jurisdictions prisoners who did have the right to vote were often still facing restrictions and/or conditions, usually based on the severity or type of offense and/or length of the sentence imposed. Prisoners may vote in countries like Czech Republic, Denmark, France, Israel, Japan, Kenya, Netherlands, Norway, Peru, Poland, Romania, Sweden and Zimbabwe. Post prison time, a majority of the countries reinstate prisoners right to vote. It is only a minority of countries whose disenfranchisement is not automatically reinstated post-release: Belgium, Luxembourg, Kuwait, Poland, and the United States. The United States locks up more people, per capita, than any other nation in the world. This is especially concerning given that the majority of states restrict or heavily condition prisoner’s rights and access to voting. Out of fifty, only Maine and Vermont allow prisoners to vote while incarcerated. Once released back into the general population, thirty-five states further exclude ex-convicts on parole and another thirty-one states exclude persons on probation. Prisoners convicted of specified offenses may vote after a waiting period in eight states and four states deny the right to vote to anyone with a felony conviction. In 2016 an estimated 2.5% of the voting age population, excluding Washington, D.C., could not vote do a felony conviction. Felon disenfranchisement disproportionately affects people of color and lower income communities. Over 7.4% of the total adult African American population is disenfranchised in the US. Some states even have rates rising above 20%. These high rates are partly due to discriminatory effects of federal and state legislation such as mandatory minimum sentencing and the bail system. It is also an effect of a criminal justice system that is historically tied to oppression and discrimination. Disenfranchisement laws were brought to America by European colonists from a time when criminals were banished and ostracized. These laws became popular after the passage of the Fifteenth Amendment opened up the vote to newly freed African Americans, as a way to employ race-neutral means to exclude blacks from voting. A 2013 report from the OHCHR stated that “The felony disenfranchisement laws, policies and practices of the United States are inconsistent with general principles of international human rights law, norms and standards. These practices are not only in direct violation of U.S. obligations under the International Covenant on Civil and Political Rights (ICCPR) [Article 25] but they also contravene the principles as established by the Universal Declaration of Human Rights (UDHR) [Article 21] the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) [Article 5], and the American Declaration of the Rights and Duties of Man (ADRDM) [Article XX].” As part of their recommendations, the Committee has also called for the restoration of voting rights to people released from prison and raised concerns that the practice of denying voting rights to people with felony convictions disproportionately impacts minority groups and are counterproductive to efforts to reintegrate those exiting prison. Disenfranchisement laws do not serve any purpose in nations that seek to reintegrate and re-educate citizens convicted of crimes rather than to ostracize them. These laws strip the presently and formerly incarcerated of a means to voice their opinion and enact legislative change that could benefit their communities. The stripping of these rights is especially concerning as it disproportionately affects communities which have historically been discriminated against in other ways.

By Julia Jacovides On this day in 1989, Iran broke off diplomatic relations with Britain for its refusal to denounce Salman Rushdie and his novel, The Satanic Verses. On February 14, Ayatollah Ruhollah Khomeini had issued a fatwa calling for Rushdie’s death and, though Britain admitted the book was insulting, it did not support the fatwa. The Satanic Verses follows the lives of two Indian expatriates, both Muslim, living in England and struggling to connect with their faith. Critics accused Rushdie of “blaspheming Islam.” From the Archbishop of Canterbury to the foreign secretary, the British establishment similarly denounced the book. Even Jimmy Carter referred to it as an “insult to the sacred beliefs of” Islam. Rushdie’s supporters maintained that Rushdie’s freedom of expression allowed him to pen any type of novel, including this one. “A novel is an essentially playful undertaking,” one said, “and this is an exceedingly playful novel.” With the help of a small circle of literary friends, Rushdie went into hiding. He has lived under police supervision since then. Bookstores across the United States and the United Kingdom, where Rushdie lived at the time of publication, continued to sell the book despite periodic attacks and occasional bomb scares. Riots took place in Islamabad, Kashmir, and New Delhi; there were deaths at each. Two bookstores in Berkeley, California were firebombed; each carried The Satanic Verses. Britain had only reopened its embassy in Tehran a year earlier, nearly ten years after the 1979 Iranian Revolution. It took another ten years for the two countries to formally reestablish full diplomatic relations. In 1998, the Iranian government abandoned its support of the fatwa as part of an effort to normalize relations with the United Kingdom. In February 2016, Iranian news outlets raised $600,000 “to add to the fatwa” on Rushdie.